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left wing of the French army, another end-, have our artillery; it was horse-drawn; ing for the war would have been written. while the infantry had come in trucks. We By 6:00 o'clock on the night of the 15th

were ordered to attack at dawn and we we knew twenty-five German divisions

jumped off into thick woods just before were gone. The high command knew the

dawn. The Alabama regiment went in three big battle had been delivered on that front

thousand strong and lost over a thousand and that there was nothing to be feared on

men the first hour. I saw a company at noon the British front. The French reserves

that had gone in with two hundred and were free. And two days later General

fifty men and had seventy-five men left. Foch broke loose with his offense at Sois

Iowa suffered equally. They fought all the sons.

morning and couldn't take the farm. About

4:00 o'clock in the afternoon they finally We pulled out of line on Friday, the 21st, I got into it, cleaned the machine-guns out and began to entrain to go close down to and by sunset they had the Germans back Paris. They said they were going to give to the edge of the woods. They fought us two weeks' rest. We had lost more than all night through the woods and the next two thousand men during the spring and morning our other two infantry regiments had lost two thousand men in the Cham came up in trucks, Ohio and New York. pagne battle. Our men had been fighting We fought all day and the Germans steadily since the middle of February and it was went back towards the Ourcq, and at night then the 21st of July and we needed rest. they crossed the Ourcq and took up a poWe started to detrain our infantry thirty sition on the other side. The Ourcq River five miles outside of Paris in the morning. we would call a creek over here; it is At 4:00 o'clock the next afternoon we got only ten or twelve feet wide and a foot or telephone orders to load them into trucks two deep. On the other side there was a and get them up north of Chateau Thierry semi-circular crest and the two ends came and relieve the 26th Division. We had down to the river. It was all open, no two regiments in then, the Iowa and the cover, no woods on either side. From the Alabama. By midnight they were moving nearest woods on our side there was a slope in trucks up the road to Chateau Thierry. of about six yards to the river, then say 600 The roads were packed with troops going yards up to the crest on the other side. At up and trucks and ambulances going down. each point where the crest neared the river We got our headquarters into Trugny about there was a French village of fifty or a 4:00 o'clock in the morning. The Germans hundred stone houses and they were very had been there the morning before. We were strong places. The Germans were in these about four miles back of the battle line. Our villages and all along the crest with mainfantry arrived at dawn and we got them chine guns. We were ordered to force a up in the woods right back of the fighting passage of the Ourcq. The freshest regithat afternoon. The Germans were hold ment was the New York regiment. One ing south of the Ourcq and the key to their battalion crossed at dawn in a thick position was a French farm, the Red Cross mist. It started up the slope and farm. Every farmhouse in France is a good every officer that went up the slope fort, they are all built of stone with stone! – and every officer in that battalion outbuildings; most of them dating back to | did—was killed or wounded. Out of one the Middle Ages, and this Red Cross farm i thousand men that went across there were was particularly strong. It had a north and less than three hundred left at noon. But south road in front, a raised macadam | we had a battalion for each regiment across road, with machine-guns all along back of i by the afternoon of that day, and we had the road and in the farm house and all ! our own artillery. Then the fighting became along the edge of the woods. We did not fierce. We were under German artillery

fire and machine-gun fire. We could not go and the battlefield after the fighting is over forward or back. The Iowa regiment was is inspiring. It is wonderful to see the dead ordered in to take the village of Sergy on and to see what they have done and what our right. When they got in they found they accomplished. I never saw a dead we had a fresh division against us. We American on the field of battle, except had fought the 6th Bavarian, the 10th those who had been wounded and turned on German and the 201st German Divi their back to bandage themselves, who sions; when we got to Sergy we found wasn't dead pointing head-on straight tothat they had brought up one of their best ward the enemy and with every muscle set divisions, the 4th Imperial Prussian Guard, to go forward. And on the battlefield there, and put it in position to hold us; and they where the New York regiment had gone up did hold us there a while. We took Sergy | the hill the first morning we crossed the and they took it back. In the next three Ourcq every man lay in perfect attack fordays' fighting we took and retook it five mation all dead and all headed straight times and the fifth time we held onto it. forward.

On the left we had to take the town of Seringes. The Ohio regiment took it the

We stayed there a week about ten miles second afternoon. The Germans drove us

behind the battle front. Tired as we were out and we retook it again three times and

they had to hold us in reserve. Finally, a then held on to it. The New York regi

week later, we were ordered out and ment was fighting at the right of the Ohio

marched back through Chateau Thierry and regiment and the Alabama regiment was

entrained near Paris. They took us back between New York and Iowa. The Ala

to Eastern France and said they were gobama regiment couldn't go forward or back;

ing to give us a month to rest up, and we they were completely exposed to fire from

needed it. It was then nearly the last of both flanks. The men would go forward

August and we had been fighting since Feband be raked by machine-gun fire and die.

ruary. We had lost more than ten thouThey couldn't move. They lost three ma

sand men out of our twenty-five thousand, jors and a lieutenant colonel wounded, and

and we needed replacements. The evening out of three thousand men that went into

of the sixth day of our rest we received the battle they had about seven hundred orders to pick up the division and start men left when it was over.

marching again. By the end of the sixth day we were very We had information that we were going weak. We had relieved the 26th American

up towards St. Mihiel, that the American Division, a brigade of the 28th, and two

army was going to attack the St. Mihiel French divisions and were spread out on Salient. We couldn't march in the daytime a front of about three miles. The morning on account of enemy aerial observation. of the seventh day we went forward again

We had to start the men at dark and get and rolled on up over the crests of the them into the woods out of sight before Ourcq. There wasn't much left of us, but dawn. That sounds easy, but a division in there wasn't anything left of the 4th Imper

column takes up about thirty miles of road ial Prussian Guard. We went on through space and there were about 300,000 other the woods that day and that night we were

men moving in that same area. relieved and came out and camped on the Ourcq battlefield. We had fought there The St. Mihiel operation was the first for six days and had lost over six thousand | operation of the American army; before men. It was hot and we had not had a that we had fought as separate divisions, chance to bury our dead and the German but in August they formed the army. They dead and we had to do it then. But a bat gathered all the American divisions over tlefield is inspiring; the fighting is inspiring there together and gave us this big job to

do; and we used over 400,000 men in the River and the Argonne Forest. They went St. Mihiel operation.

through for six miles, then stopped on the

German second position. There the fightWe received orders to march and we

ing became very bitter. All during the marched for nine nights. And the night we started to march it started to rain and

month of October you heard about the terit rained for nine nights and days. When

rific fighting up on the British front and we got up to the St. Mihiel country, the

the French front, how the Germans were country was very wet. That is the Woevre pushed back from the ocean; how Ypres country and it is very flat and muddy. The and Valenciennes had fallen. You did not men were tired and wet and the trenches on hear very much about the Americans, exour front were knee deep in water. We cept that they were having hard fighting, lay there in the woods and the night of the and we were. The country was tremen11th of September we went into position. dously rough, with a forest on our left and The artillery preparation opened up at mid the river on our right. We had no large night. The French had tried twice to wipe

towns to attack, but it was a very important out the salient and they had had two bloody

position for the Germans to hold. They reverses. They were not sure the Ameri

were trying to pull their line back to Gercans could do it. They knew the men we

many pivoting on that particular section had were fighters, but they did not think

from Verdun to the Argonne Forest. If we had staff officers that could handle a

the Americans were able to push them back big army.

on that front and cut the railroad at Sedan We jumped off at 5:30 in the morning to they would have no railroad communicathe most successful operation the American tion back to Germany, and for that reason army had. The Germans were trying to they threw in all they had to try and stop pull out of the salient in retreat and we us. turned the retreat into rout. On our front

The American army fought during the we took over 1,000 prisoners the first hour

Argonne-Meuse offensive from September of the fight. We went in and reached our

26 until the armistice on about one-twentiday's objective at 10:00 o'clock in the morn

eth of the entire Western front, and during ing. We were to reach the Hindenburg line at 6:00 o'clock the next night. We had it

those forty days' fighting we met on that before noon the next day. We captured

twentieth of the front more than one-fourth men, artillery, ammunition, stores, cloth

of the entire German army. The fighting ing, food of all kinds. And that was the

was terrific. We relieved the First Divifirst taste our men had of loot, and from

sion on October 12. They had lost 8,500 that time on they wanted to get into Ger- men the week before. The country was many and do a good job. The St. Mihiel i very wet, everywhere mud and it rained all advance was very successful, but it wasn't the time. I have seen our tired horses fall hard fighting such as we had had in the down on roads so muddy that the driver Champagne and on the Ourcq.

would have to jump off and hold the head They kept us in that sector for two weeks

of his horse up out of the mud so he would to organize the new position. They then

not drown. took us into the Argonne fight. That start- Finally, on the first of November, the ed on September 26, was the final offensive Americans broke through all along the line. of the war, and continued until the armi In four days we made more than twenty stice on November 11.

kilometers and hit the Meuse River on the On September 26 the Americans jumped

7th of November, our division holding the off on the whole front between the Meuse heights that overlooked the town of Sedan.

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Where a liability insurer, defending an action

time for appealing had expired, it was estopped from asserting that an appeal would not have resulted in a reversal, or that he was not damaged in the full amount he was compelled to pay.

That last drive was terrific. Our men | INSURANCE-FAILURE TO TAKE APPEAL. were terribly exhausted and the horses

MCALEENAN V. MASSACHUSETTS BONDING were more exhausted than the men. We

& INS. CO. had only horses enough left in the artillery regiment of our division to pull up in that | Supreme Court, Appellate Division, First Delast advance three batteries per regiment

partment. February 6, 1920. instead of six. We had then been in the

180 N. Y. S. 287. fight continuously since February and it was now November; the men's vitality was

against insured, resulting in a judgment against gone. We went down between the 15th of

him, assured him that an appeal would be taken,

thereby leading him to take no appeal until the October and the 1st of November from about 12,000 rifles in the division to a little over 5,000, about half casualties and the rest from exhaustion and sickness. When

MERRELL, J. The plaintiff, Joseph A. Mc. we reached Sedan we were very tired. Aleenan, was insured by the defendant, Massa.

chusetts Bonding & Insurance Company, against On the 10th of November we were re liability for damages for injuries to third perlieved and pulled back from Sedan and on sons caused in the operation of said plaintiff's the 12th we started to march to Germany.

automobile. Under the contract of insurance

the liability of the defendant company was lim. The armistice did not make much difference

ited to $5,000. The plaintiff met with an acciexcept that the shell fire and the bombing dent, as the result of which one Pietro Cimino stopped. The roads were still terrific. The lost his life as the result of an injury received first visible signs that war was over were

from plaintiff's said automobile. An action was

brought by the administratrix of Cimino to reseen at night when the motor trucks began

cover damages based upon the alleged neglito light up. Before that time we couldn't gence of the plaintiff herein. Under the terms show a light at night because of the bomb of the policy of insurance issued by the defend.

ant to the plaintiff, the defendant bonding coming planes.

pany assumed the defense of the action. The On the 12th the march began and our di

defendant herein furnished its attorney,

Holmes, and trial counsel, Heermance, to defend vision was finally billeted close to Coblenz.

the Cimino action against the plaintiff. The We had been in the line for 264 days. We trial resulted in a judgment in favor of the had been under fire, actually fighting, for administratrix of Cimino against this plaintiff 184 days; we had been in reserve just be

for $13,131.98. No appeal was taken from that

judgment. The defendant bonding company hind the line and marching from front to

paid the administratrix the limit of its liability, front seventy days, and in all that time we $5,000, besides interest and costs of the action. had had six days' rest. That division was The plaintiff in this action was compelled to in line more days than any American divi

pay the balance of the recovery, amounting to

$7,826.58. Thereupon the present action was sion and made a further advance into en

brought by McAleenan against the bonding emy territory.

company to recover the moneys thus paid by

him to satisfy the judgment rendered against It was not American resources or wealth him. The basis of the action was the alleged that won the war; it was the American negligence and failure of the defendant to take doughboy with his bayonet that did it. It

and prosecute an appeal from the judgment

recovered against this plaintiff in the Cimino was just the men who went through the

action. carnage of battle, battles like these and at The defendant in the present action, upon the end still had their bayonet at the Ger the trial, offered in evidence the minutes of the man breast that brought this war to a con

trial in the personal injury action against this

plaintiff, for the purpose of showing that no clusion. NOBLE B. JUDAH.

grounds existed upon which to obtain a re Chicago, Ill.

versal of the judgment in that action. Under objection of counsel for the plaintiff herein 826, seems to be exactly in point. In that case the trial court refused to receive said minutes it was held that estoppel to deny liability on of trial in evidence, the court holding that the the part of the appellant to respond in damages defendant, through its attorneys and agents, arose from a similar act of the defendant. In Eaving refused to permit an appeal to be taken the course of its opinion in that case, the Court by the plaintiff herein from the judgment in said: the personal injury action, and in agreeing and "It is insisted that estoppel does not arise un. assuming to prosecute an appeal from said less it is shown that respondent has been judgment, took away from the plaintiff val.

actually prejudiced, and that it does not appear

that the judgment of the Hawaiian court was uable rights which he had, and was estopped

wrong, and would have been reversed on appeal. from denying that there were reversible errors

That is a matter this court cannot determine. upon the trial, and from asserting that the * * * The respondent, therefore, had the abplaintiff herein suffered no damages by reason

solute right to have the cause reviewed on ap.

peal. It was induced to abandon that right by of the failure of the defendant to bring an

the conduct of appellant, and the latter should appeal from said judgment. The defendant in. not now be heard to say that respondent was sists upon this appeal that as a part of plaintiff's not prejudiced because of mere absence of a case, showing that he suffered damages by rea.

positive demonstration that it would have se. son of the failure to bring said appeal, it was

cured a reversal on appeal. No one except the

Infinite Mind can determine that question to a incumbent upon him to introduce in evidence

certainty at this time. Not even the court that the record and minutes of the trial of the per. would have reviewed the case can now know sonal injury action, showing the commission of

whether in its view reversible error would have

appeared or not. But the certain fact does aperror on said trial, or that the verdict rendered

pear that, by reason of appellant's conduct, rewas against the weight of the evidence, and

spondent did not have the benefit of the wisthat a reversal would have resulted from such

dom and experience of the learned judges of appeal, had one been taken.

the appellate tribunal, the United States CirIt seems to me that the court properly held

cuit Court of Appeals. We therefore think ap

pellant is now estopped to deny its liability to that in view of the attitude of the representa pay as it promised, which included both the tives of the defendant bonding company, and amount of the judgment and the subsequently of its assurance to the plaintiff herein that an

incurred costs." appeal would be taken and that a reversal It is of course impossible, in the case at bar, would result, thus lulling him into security to say what would have been the result, had and depriving him of his right to appeal, de- an appeal been taken; but by reason of the con. fendant is precluded from asserting that an duct of the defendant bonding company, plainappeal would have been without effect, and that tiff was deprived of opportunity of review, in a reversal would not have resulted, had such an the appellate court, and the defendant, whose appeal been taken. Aside from the question as act deprived plaintiff of his rights, is, it seems to whether or not errors were committed upon to me, estopped to deny its liability to reimthe trial requiring a reversal, had an appeal burse plaintiff for the full amount which he been taken it might thereon have been deter was compelled to pay. mined whether or not the verdict rendered was Affirmed, against the weight of the evidence. The amount of the verdict also might have been tested, and

Note-Proof of Injury Which from Failure to a determination reached whether or not the | Perform Is Incapable of Estimation.—There is recovery was, under the circumstances, exces | a maxim omnia praesumuntur contra spoliasive. Not only that, but the failure of the de.

torem, but it has been said, “There is great dan

ger that the maxim may be carried too far." fendant to bring an appeal precluded any pos

For example, where the maxim has reference to sible compromise of the recovery which might the contents of a paper destroyed or withheld have been effected, had an appeal been taken. if the contents are proved, there is no need for Furthermore, there was lost to the plaintiff

resort to the maxim. Bote v. Wood, 56 Miss. herein the privilege of paying up the amount of

16; Jones v. Knauss, 31 N. J. Eq. 609. But the

destruction of a receipt may presume payment the judgment recovered promptly and stopping

of money. Downing v. Plate, 90 Ill. 268. And the accumulation of interest thereon. All of where agreement is made to keep strict account these were valuable rights, which the plaintiff

of the working of a coal mine extending under herein lost as the result of the failure of the

adjoining land, this may raise the presumption

that the entire mass, or no part of the same, acdefendant to keep and perform its representa

cording as it was the interest of his adversary tion and promise to bring an appeal from said to contend, was from under the adjoining land. judgment.

Dean V. Thwaits, 21 Beay. 621. The case of Globe Navigation Co., Ltd., v.

And so where it was the duty of a member

of a firm to keep its books, the other partner Maryland Casualty Co., 39 Wash. 299, 81 Pac. |

'may claim he used more in his family expense

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